The judges v the government

Wigging out

A war of words over human rights and public safety

“BARMY”. That was Tony Blair's view of the High Court decision last week to allow nine Afghan hijackers temporary leave to remain in Britain. The men had fled the Taliban regime by diverting a passenger plane to Stansted airport six years ago. The Home Office tried to remove them, but the judge ruled they could stay until it was safe for them to return. Mr Blair described the court's decision as “an abuse of common sense”.

An attack by a prime minister on a court ruling is a rare, if not unprecedented, event. But following a series of loud criticisms of government policy by a confident and seemingly activist judiciary, Mr Blair may have felt provoked. If so, he was not alone. Mr Justice Sullivan, the judge who presided over the hijackers' case, was equally cross with the government. “It is difficult to conceive a clearer case of conspicuous unfairness amounting to an abuse of power by a public authority,” he said. The issue, the judge said, was not whether the government should take action to discourage asylum-seekers from hijacking planes, but whether it should be required to do so within the law.

The wrangle soon escalated into a dispute over the 1998 Human Rights Act, which incorporated the European Convention on Human Rights (ECHR) into English law. Most lawyers reckon the act, which was passed on Mr Blair's watch, simply codifies principles, such as the right to a fair trial and the right not to be tortured, that were already in English law.

Its opponents disagree. As well as encouraging hijackers, they say, the Human Rights Act has given undeserved rights to murderers and made it impossible to deport foreign criminals to countries where they might be in danger. The Sun newspaper, which has a Blair-like ear for public opinion, has set up a hotline for readers to call if they want to undo the act, and has printed mugshots of troublesome judges. The Conservatives have pledged to reform, replace or scrap it. Ministers hinted this week that the law may be rewritten to make it clear that collective rights (to live in safety, for example) are as important as individual ones.

Before the 1970s, relations between the judiciary and the executive were fairly gentlemanly, some would say undesirably cosy. That began to change with the rise of judicial review of administrative actions. The Human Rights Act marked a more sudden and (for the government) alarming break with tradition. Unlike their counterparts on America's Supreme Court, English judges cannot strike down a law. But they can now declare it to be incompatible with the ECHR, and, in practice, this means the government is obliged to change the law.

The extent of the judges' power was revealed in 2004, when the House of Lords (Britain's highest court) decided that the detention without trial of foreign terror suspects was unlawful. The government hurriedly rewrote the detention laws, only for another judge to rule that the new laws were incompatible with the ECHR.

Labour maintains that British judges give more weight to human-rights arguments than do judges in continental Europe. There is a sense of the grass being greener on the other side of the channel, but the government has a point. Last year the European Court of Human Rights in Strasbourg ruled on just 14 cases brought by British plaintiffs, suggesting that the ECHR has been so tightly woven into domestic law and culture that appeals are unnecessary. That compares with 57 cases from France, where the ECHR has been in effect for three decades, and 70 from Italy.

Judicial activism is not, however, the only reason for the clash between the judiciary and the executive. The other is increased government activism. As critics in the Conservative Party point out, the Home Office writes criminal-justice legislation at great speed. In a typical year two meaty bills appear. The attorney-general also intervenes in the courts by appealing against sentences that seem unduly lenient. He did so 75 times in 1995 and 122 times in 2005. That means stiffer sentencing all around, since no judge likes an appeal against his decision to be successful.

The odd thing about the dispute between the government and the judiciary is that it makes neither side really uncomfortable. The government is certain it is on the right side of the argument. In a purely political sense, it is: opinion polls consistently show that Britons value security over abstract rights. The judges, for their part, feel ever more strongly that they are the sole bulwark against a tide of ill-advised, populist measures. The dispute may be heated, but neither side is sweating.

This is a pity, because there are some obvious flaws in the criminal-justice system that are much more mundane than disputes over human rights. Witnesses are rarely informed of what happens to the perpetrators of crimes. Victims are often not told when prisoners are released. The courts treat defendants even more callously. Were the judges and the politicians to step down from their soapboxes and talk more sensibly, they might find that they agree on many of the problems, and even how to solve them.